COMMONWEALTH v. ROBINSON (06/21/74)

Appeals from judgments of sentence of Court of Common Pleas of Delaware County, March T., 1972, Nos. 609, 610, and 611, in case of Commonwealth of Pennsylvania v. Francis J. Robinson.

COUNSEL

Carmen P. Belefonte, with him Garland D. Cherry, and Kassab, Cherry and Archbold, for appellant.

Stephen J. McEwen, Jr., District Attorney, with him Ralph B. D'Iorio, Assistant District Attorney, and William R. Toal, Jr., First Assistant District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J. absent). Opinion by Spaeth, J. Watkins, P. J., and Hoffman and Cercone, JJ., concur in this result. Wright, P. J., and Spaulding, J., did not participate in the consideration or decision of this case.

Author: Spaeth

[ 229 Pa. Super. Page 134]

Appellant was convicted by a jury of assaulting a person making an arrest without a warrant,*fn1 assault and battery,*fn2 and operating a motor vehicle while under the influence of intoxicating liquor.*fn3 On this appeal he raises three issues. None warrants reversal of his convictions.

The facts surrounding the charges may be summarized as follows. Around 11:15 p.m. on the night of June 29, 1971, Officer Richard Nestor of the Radnor Township Police Department was making a routine patrol of the grounds of the Overbrook Country Club when he observed appellant in the parking lot, staggering, with his shirt out and his fly open.*fn4 The officer drove to the clubhouse where he tried to find someone who could drive appellant home. He was unsuccessful and had returned to his patrolling when a car driven

[ 229 Pa. Super. Page 135]

by appellant passed him at a high rate of speed. The officer followed, stopped the car, and placed appellant under arrest for drunken driving. Another officer arrived at the scene, and appellant was transported to the police station. There he was asked to submit to a breathalyzer test (referred to in the transcript as the "Mobat Test")*fn5 but he refused. When Officer Nestor attempted to remove appellant's tie before placing him in a cell, appellant struck the officer.

I

Appellant's first contention is that the trial judge erred in refusing defense counsel's request (made during recross-examination) that the Commonwealth be directed to produce a police report prepared by Officer Nestor so that counsel might use it in questioning the officer. The judge gave three reasons for his ruling: (1) that it had not been conclusively established that the report existed; (2) that the request should have been made earlier (even before trial); and (3) that the report would be of little use to counsel since recross-examination was limited to the matters touched on during redirect examination.

The first of these reasons is not sound. The officer's testimony was equivocal, if not evasive, regarding the existence of the report. Nor does it appear that the district attorney used "diligent good faith efforts" in determining whether the report was part of the police files. See, ABA Project on Standards for Criminal Justice, Discovery and Procedure Before Trial § 2.4 (1970).

The second and third reasons may be considered together, as they overlap.

[ 229 Pa. Super. Page 136]

Pa.R.Crim.P. 310 states that "[i]n no event . . . shall [a] court order pretrial discovery or inspection of written statements of witnesses in the possession of the Commonwealth." Appellant's counsel thus could not have obtained the report before trial as the trial judge suggested.

There is no bar, however, to requesting discovery of a witness's written statements during trial. Commonwealth v. Kontos, 442 Pa. 343, 276 A.2d 830 (1971). In fact, "relevant, pre-trial statements of witnesses in the possession of the Commonwealth must be made available to the accused, upon request, during the trial." Commonwealth v. Morris, 444 Pa. 364, 366, 281 A.2d 851 (1971). See also Brady v. Maryland, 373 U.S. 83 (1963). This rule extends to reports made by police officers who testify as witnesses. Commonwealth v. Swierczewski, 215 Pa. Superior Ct. 130, 257 A.2d 336 (1969). The request must be timely, and come preferably before cross-examination of the witness begins. Commonwealth v. Kubacki, 208 Pa. Superior Ct. 523, 224 A.2d 80 (1966). Upon timely request the trial judge should review the evidence and permit access to those portions that are relevant to matters raised on direct examination. Commonwealth v. Swierczewski, supra at 135, 257 A.2d at 339.

The report in question here was one of three. The defense had access to two of the reports prepared by the officer. The possibility that there was a third report appeared during cross-examination, and also from the officer's testimony at a pretrial hearing. Appellant's counsel, however, did not request production of the third report until recross-examination, and it was within the trial judge's discretion to consider the request as made too late. Appellant's counsel could have requested production of the report before beginning cross-examination of the officer, and at the very latest should have requested it following the officer's answers

[ 229 Pa. Super. Page 137]

to questions on cross-examination concerning the existence of the report. See Commonwealth v. Collins, 440 Pa. 368, 269 A.2d 882 (1970). The importance of timely requests for discovery should not be minimized. There is an inherent possibility that interruptions and continuances will result while the court determines if discoverable materials actually exist and then reviews them for relevancy. Finally, redirect examination was narrowly limited, and the request for the report on recross-examination had something of the appearance of afterthought.

II.

Appellant's second contention is that the trial judge erred in permitting the impeachment of a witness called by appellant.

Bernard White, appellant's friend and a fellow attorney, went to the Radnor police station in the early morning hours (between 1:45 and 2:00 a.m.) to confer with appellant and arrange for his release. On direct examination Mr. White testified that when he met appellant, "there was no indication . . . that he was under the influence or had been even been [ sic ] drinking. He was quite clear in what he said to me. He seemed to be thinking very clearly as to what he should do or should not do. His face was not flushed. I detected no smell of alcohol. He stood erect." In rebuttal, the Commonwealth recalled to the stand Officer William M. Zimmerman, who testified that on the night of the incident, after learning the information on the arrest report, Mr. White had said, "Yes, I can see what kind of condition Mr. ...

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